Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698938966922.pdf (South Africa)
REPUBLIC OF SOUTH AFRICA CRIMINAL AND RELATED MATTERS AMENDMENT BILL (As introduced in the National Assembly (proposed section 75); explanatory summary of Bill and prior notice of its introduction published in Government Gazette No.

43595 of 7 August 2020) (The English text is the offıcial text of the Bill) (MINISTER OF JUSTICE AND CORRECTIONAL SERVICES) [B 17—2020] No.
of copies printed ....................................... 350 ISBN 978-1-4850-0657-2 GENERAL EXPLANATORY NOTE: 2 [] Words in bold type in square brackets indicate omissions from existing enactments.

Words underlined with a solid line indicate insertions in existing enactments.
BILL To amend—     the Magistrates’ Courts Act, 1944, so as to provide for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries; and the giving of evidence through audiovisual link in proceedings other than criminal proceedings; the Criminal Procedure Act, 1977, so as to further regulate the granting and cancellation of bail; the giving of evidence by means of closed circuit television or similar electronic media; the giving of evidence by a witness with physical, psychological or mental disability; the appointment, oath and competency of intermediaries; and the right of a complainant in a domestic related offence to participate in parole proceedings; the Criminal Law Amendment Act, 1997, so as to further regulate sentences in respect of offences that have been committed against vulnerable persons; and the Superior Courts Act, 2013, so as to provide for the appointment of intermediaries and the giving of evidence through intermediaries in proceedings other than criminal proceedings; the oath and competency of intermediaries; and the giving of evidence through audiovisual link in proceedings other than criminal proceedings, and to provide for matters connected therewith.
PARLIAMENT of the Republic of South Africa enacts, as follows:— Insertion of sections 51A, 51B and 51C in Act 32 of 1944 1.

The following sections are hereby inserted after section 51 of the Magistrates’ Courts Act, 1944: 5 3 ‘‘Evidence through intermediaries in proceedings other than crimi- nal proceedings 51A.
A court may, on application by any party to proceedings in terms of Part II of this Act before the court, or of its own accord and subject to subsection (4), appoint a competent person as an intermediary in order to enable a witness— (a) under the biological or mental age of 18 years; (b) who suffers from a physical, psychological, mental or emotional 5 condition; or (c) who is an older person as deﬁned in section 1 of the Older Persons 10 Act, 2006 (Act No.
13 of 2006), to give his or her evidence through that intermediary, if it appears to that court that the proceedings would expose such a witness to undue psychological, mental or emotional stress, trauma or suffering if he or she testiﬁes at such proceedings.

(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary, except examination by the court, may take place in any manner other than through that intermediary.
15 (b) The intermediary may, unless the court directs otherwise, convey 20 the general purport of any question to the relevant witness.
(3) If a court appoints an intermediary in terms of subsection (1), the court may direct that the relevant witness gives his or her evidence at any place— (a) which is informally arranged to set that witness at ease; (b) which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and (c) which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, the intermediary, as well as the witness, during his or her testimony.
(4) (a) The Minister may, by notice in the Gazette, determine the persons or the category or class of persons who are competent to be appointed as intermediaries.
(b) An intermediary appearing at proceedings in terms of this section who is not in the full-time employment of the State must be paid such traveling and subsistence and other allowances in respect of the services rendered by him or her as prescribed by the rules made by the Rules Board for Courts of Law under the Rules Board for Courts of Law Act, 1985.
(5) A court must provide reasons for refusing any application or request for the appointment of an intermediary, immediately upon refusal, which reasons must be entered into the record of the proceedings.

(6) An intermediary referred to in subsection (1) may be summoned to appear in court on a speciﬁed date and at a speciﬁed place and time to act as an intermediary.
(7) If, at the commencement of or at any stage before the completion of the proceedings concerned, an intermediary appointed by the court, is absent for any reason, becomes unable, in the opinion of the court, to act as an intermediary or dies, the court may, in the interests of justice and after due consideration of the arguments put forward by the parties— (a) postpone the proceedings in order to obtain the intermediary’s (b) presence; summons the intermediary to appear before the court to advance reasons for being absent; (c) direct that the appointment of the intermediary be revoked and appoint another intermediary; or (d) direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary.
(8) The court must immediately give reasons for any direction or order referred to in subsection (7)(c) or (d), which reasons must be entered into the record of the proceedings.

25 30 35 40 45 50 55 60 4 Oath and competency of intermediaries 51B.
(1) Subject to subsection (3), any person who is competent to be appointed as an intermediary in terms of section 51A(4)(a) must, before commencing with his or her functions in terms of section 51A, take an oath or make an affirmation subscribed by him or her, in the form set out below, before the magistrate presiding over the proceedings: ‘I, ......................., do hereby swear/truly affirm that, whenever I may be called upon to perform the functions of an intermediary, I shall truly and correctly, to the best of my knowledge and ability— (a) perform my functions as an intermediary; and (b) convey, properly and accurately, all questions put to witnesses and, where necessary, convey the general purport of any question to the witness, unless directed otherwise by the court’.
(2) (a) Subject to subsection (3), before a person is appointed to perform the functions of an intermediary in a magistrate’s court for any district or for any regional division, the magistrate presiding over the proceedings must enquire into the competence of the person to be appointed as an intermediary.
(b) The enquiry contemplated in paragraph (a) must include, but is not limited to, the person’s— (i) ﬁtness as a person to be an intermediary; (ii) experience, which has a bearing on the role and functions of an intermediary; (iii) qualiﬁcations; (iv) knowledge, which has a bearing on the role and functions of an (v) (vi) intermediary; language and communication proﬁciency; and ability to interact with a witness under the biological or mental age of 18 years or a witness who suffers from a physical, psychological, mental or emotional condition, or a witness who is an older person as deﬁned in section 1 of the Older Persons Act, 2006.
(3) (a) The head of a court may, at his or her discretion and after holding an enquiry contemplated in subsection (2), issue a certiﬁcate in the form prescribed by the Minister by notice in the Gazette, to a person whom he or she has found to be competent to appear as an intermediary in a magistrate’s court for a district or for a regional division.
(b) Before the head of a court issues a certiﬁcate referred to in paragraph (a), he or she must cause the person who has been found competent to be appointed as an intermediary, to take the oath or make the affirmation referred to in subsection (1) and must endorse the certiﬁcate with a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.
(c) A certiﬁcate contemplated in paragraph (a) may be accepted as proof of the— (i) (ii) competency of a person to be appointed as an intermediary; and fact that the person has taken the oath or made the affirmation contemplated in subsection (1), for purposes of this section, in any subsequent proceedings in terms of this Act, before a magistrate’s court for a district or for a regional division and it is not necessary for the magistrate presiding over the proceedings in question to administer the oath or affirmation or to hold an enquiry into the competence of the person to be appointed as an intermediary.
(d) Paragraph (c) must not be construed as prohibiting a magistrate from holding an enquiry, at any stage of proceedings, regarding the competence of a person to act as an intermediary.

(e) For the purposes of this section, ‘‘head of a court’’ means the most senior judicial officer of that court.

5 10 15 20 25 30 35 40 45 50 55 5 Evidence through audiovisual criminal proceedings link in proceedings other than 51C.
(1) A court may, on application by any party to proceedings in terms of Part II of this Act before that court or of its own accord, order that a witness, irrespective of whether the witness is in or outside the Republic, if the witness consents thereto, may give evidence by means of audiovisual link.
(2) A court may make an order contemplated in subsection (1) only if— (a) (b) (c) it appears to the court that to do so would— (i) (aa) prevent unreasonable delay; (bb) save costs; (cc) be convenient; or (dd) prevent the likelihood that any person might be preju- diced or harmed if he or she testiﬁes or is present at such proceedings; and (ii) otherwise be in the interests of justice; facilities thereof are readily available or obtainable at the court; and the audiovisual link that is used by the witness or at the court enables— (i) persons at the courtroom to see, hear and interact with the (ii) witness giving evidence; and the witness who gives evidence to see, hear and interact with the persons at the courtroom.
(3) The court may make the giving of evidence in terms of subsection (1) subject to such conditions as it may deem necessary in the interests of justice.

(4) The court must provide reasons for— (a) allowing or refusing an application by any of the parties; or (b) its order and any objection raised by the parties against the order, as contemplated in subsection (1).
(5) For purposes of this Act, a witness who gives evidence by means of audiovisual link is regarded as a witness who was subpoenaed to give evidence in the court in question.

(6) For purposes of this section ‘‘audiovisual link’’ means facilities that enable both audio and visual communications between a witness and persons at a courtroom in real-time as they take place.’’.
Amendment of section 59 of Act 51 of 1977, as substituted by section 3 of Act 26 of 1987, section 1 of Act 126 of 1992 and section 2 of Act 75 of 1995 2.
Section 59 of the Criminal Procedure Act, 1977, is hereby amended by the 40 substitution in subsection (1) for paragraph (a) of the following paragraph: ‘‘(a) An accused who is in custody in respect of any offence, other than an offence— (i) (ii) (iii) referred to in Part II or Part III of Schedule 2; against a person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998 (Act No.
116 of 1998); or referred to in— (aa) section 17(1)(a) of the Domestic Violence Act, 1998; (bb) section 18(1)(a) of the Protection from Harassment Act, 2011 (Act No.
17 of 2011); or (cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, may, before his or her ﬁrst appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.’’.
45 50 55 6 Amendment of section 59A of Act 51 of 1977, as inserted by section 3 of Act 85 of 1997 3.
Section 59A of the Criminal Procedure Act, 1977, is hereby amended— (a) by the substitution for the heading of the following heading: ‘‘[Attorney-general] Director of Public Prosecutions may authorise release on bail’’; and 5 (b) by the substitution for subsections (1), (2), (3) and (4) of the following subsections respectively: ‘‘(1) [An attorney-general] A Director of Public Prosecutions having jurisdiction, or a prosecutor authorised thereto in writing by the [attorney-general] Director of Public Prosecutions concerned, may, in respect of the offences referred to in Schedule 7 and in consultation with the police official charged with the investigation, authorise the release of an accused on bail: Provided that a person accused of any offence contemplated in section 59(1)(a)(ii) or (iii) may not be released on bail in accordance with the provisions of this section.
(2) For the purposes of exercising the functions contemplated in subsections (1) and (3) [an attorney-general] the National Director of Public Prosecutions may, after consultation with the Minister, issue directives.
(3) The effect of bail granted in terms of this section is that the person who is in custody shall be released from custody— (a) upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his or her bail at his or her place of detention contemplated in section 50(1)(a); subject to reasonable conditions imposed by the [attorney-general] Director of Public Prosecutions or prosecutor concerned; or the payment of such sum of money or the furnishing of such guarantee to pay and the imposition of such conditions.
(b) (c) (4) An accused released in terms of subsection (3) shall appear on the the time determined by the ﬁrst court day at [attorney-general] Director of Public Prosecutions or prosecutor concerned and the release shall endure until he or she so appears before the court on the ﬁrst court day.’’.
the court and at Amendment of section 60 of Act 51 of 1977, as amended by section 2 of Act 56 of 1979, section 2 of Act 64 of 1982, section 3 of Act 75 of 1995, section 4 of Act 85 of 1997, section 5 of Act 34 of 1998, section 9 of Act 62 of 2000, section 4 of Act 55 of 2003 and section 9 of Act 66 of 2008 10 15 20 25 30 35 4.
Section 60 of the Criminal Procedure Act, 1977, is hereby amended— (a) by the substitution in subsection (2) for paragraph (d) of the following 40 paragraph: ‘‘(d) shall, where the prosecutor does not oppose bail in respect of matters referred to in subsection (11)(a) [and], (b) and (c), require of the prosecutor to place on record the reasons for not opposing the bail application.’’; (b) by the substitution for subsection (2A) of the following subsection: ‘‘(2A) The court must, before reaching a decision on the bail application, take into consideration— (a) any pre-trial services report regarding the desirability of releasing an accused on bail, if such a report is available; and the view of any person against whom the offence in question was allegedly committed, regarding his or her safety.’’; (c) by the substitution in subsection (4) for paragraph (a) of the following (b) paragraph: ‘‘(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person or will commit a Schedule 1 offence;’’; (d) by the substitution for subsection (5) of the following subsection: 45 50 55 7 ‘‘(5) In considering whether the grounds in subsection (4)(a) have been established, the court may, where applicable, take into account the following factors, namely— (a) the degree of violence towards others implicit in the charge against the accused; (b) any threat of violence which the accused may have made to a person against whom the offence in question was allegedly committed or any other person; any resentment the accused is alleged to harbour against a person against whom the offence in question was allegedly committed or any other person; (c) (d) any disposition to violence on the part of the accused, as is evident (e) from his or her past conduct; any disposition of the accused to commit— (i) offences referred to in Schedule 1; (ii) an offence against any person in a
 domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998; or an offence referred to in— (iii) (aa) section 17(1)(a) of the Domestic Violence Act, 1998; (bb) section 18(1)(a) of the Protection from Harassment Act, 2011; or (cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly commit- ted, from the accused, as is evident from his or her past conduct; the prevalence of a particular type of offence; (f) (g) any evidence that the accused previously committed an offence— (i) (ii) (iii) referred to in Schedule 1; against any person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998; or referred to in— (aa) section 17(1)(a) of the Domestic Violence Act, 35 1998; (bb) section 18(1)(a) of the Protection from Harassment Act, 2011; or (cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly commit- ted, from the accused, 40 while released on bail; or (h) any other factor which in the opinion of the court should be taken 45 into account.’’; (e) by the substitution for subsection (10) of the following subsection: ‘‘(10) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty, contemplated in subsection (9), to weigh up the personal interests of the accused against the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.’’; 50 (f) by the substitution for subsection (11) of the following subsection: ‘‘(11) Notwithstanding any provision of this Act, where an accused is 55 charged with an offence [referred to]— (a) referred
 to in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisﬁes the court that exceptional circumstances exist which in the interests of justice permit his or her release; 60 8 (b) (c) referred to in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisﬁes the court that the interests of justice permit his or her release; or contemplated in section 59(1)(a)(ii) or (iii), the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisﬁes the court that the interests of justice permit his or her release.’’; (g) by the substitution for subsection (11A) of the following subsection: ‘‘(11A) (a) If the [attorney-general] Director of Public Prosecutions having jurisdiction intends charging any person with an offence referred the [attorney-general] Director of Public to in Schedule 5 or 6, Prosecutions may, irrespective of what charge is noted on the charge sheet, at any time before such person pleads to the charge, issue a written conﬁrmation to the effect that he or she intends to charge the accused with an offence referred to in Schedule 5 or 6.
(b) The written conﬁrmation shall be handed in at the court in question by the prosecutor as soon as possible after the issuing thereof and forms part of the record of that court.
(c) Whenever the question arises in a bail application or during bail proceedings whether any person is charged or is to be charged with an offence referred to in Schedule 5 or 6, a written conﬁrmation issued by [an attorney-general] a Director of Public Prosecutions under para- graph (a) shall, upon its mere production at such application or proceedings, be prima facie proof of the charge to be brought against that person.’’; (h) by the substitution in subsection (11B) for paragraph (a) of the following paragraph: ‘‘(a) In bail proceedings, the accused, or his or her legal adviser, is compelled to inform the court whether— (i) (ii) (iii) (iv) the accused has previously been convicted of any offence; [and] there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges; an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and the accused is, or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.’’; and (i) by the substitution for subsection (12) of the following subsection: ‘‘(12) (a) The court may make the release of an accused on bail subject to conditions which, in the court’s opinion, are in the interests of justice: Provided that the interests of justice should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.
(b) If the court is satisﬁed that the interests of justice permit the release of an accused on bail as provided for in subsection (1), in respect of an offence that was allegedly committed by the accused against any person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused, and a protection order as contemplated in that Act has not been issued against the accused, the court must, after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused, where after the provisions of that Act shall apply.’’.
9 Substitution of section 68 of Act 51 of 1977, as substituted by section 10 of Act 75 of 1995 and section 6 of Act 85 of 1997 5.

The following section is hereby substituted for section 68 of the Criminal Procedure Act, 1977: ‘‘Cancellation of bail 68.
(1) Any court before which a charge is pending in respect of which bail has been granted may, whether the accused has been released or not, upon information on oath that— (a) the accused is about to evade justice or is about to abscond in order to evade justice; the accused has interfered or threatened or attempted to interfere with witnesses; (c) the accused has defeated or attempted to defeat the ends of justice; (cA) the accused has contravened any prohibition, condition, obligation (b) or order imposed in terms of— (i) (ii) section 7 of the Domestic Violence Act, 1998; section 10(1) and (2) of the Protection from Harassment Act, 2011; or an order in terms of any other law, (iii) that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused; the accused poses a threat to the safety of the public, a person against whom the offence in question was allegedly committed, or [of a] any other particular person; the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail; (d) (e) (eA) the accused has not disclosed that— (i) (ii) a protection order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998; a protection order as contemplated in section 3 or 9 of the Protection from Harassment Act, 2011; or an order in terms of any other law, (iii) was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force; (f) (eB) the accused has not disclosed or correctly disclosed that he or she is or was, at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998; further evidence has since become available or factors
 have arisen, including the fact that the accused has furnished false information in the bail proceedings, which might have affected the decision to grant bail; or it is in the interests of justice to do so, (g) issue a warrant for the arrest of the accused and make such order as it may deem proper, including an order that the bail be cancelled and that the accused be committed to prison until the conclusion of the relevant criminal proceedings.
(2) Any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1), upon the application of any peace officer and upon a written statement on oath by such officer that— (a) he or she has reason to believe that— (i) (ii) an accused who has been released on bail is about to evade justice or is about to abscond in order to evade justice; the accused has interfered or threatened or attempted to interfere with witnesses; 10 (iii) (iv) the accused has defeated or attempted to defeat the ends of justice; or the accused poses a threat to the safety of the public, any person against whom the offence in question was allegedly committed, or [of a] any other particular person; (b) (c) (d) (e) (f) the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail; further evidence has since become available or factors have arisen, including the accused has furnished false information in the bail the fact proceedings, which might have affected the decision to release the accused on bail; [or] the accused has contravened any prohibition, condition, obligation or order imposed in terms of— that (i) section 7 of the Domestic Violence Act, 1998; (ii) section 10(1) and (2) of the Protection from Harassment Act, 2011; or (iii) an order in terms of any other law, that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused; the accused has not disclosed or correctly disclosed that he or she is or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998; the accused has not disclosed that— 5 10 15 20 (i) a protection order as contemplated in
 section 5 or 6 of the Domestic 25 Violence Act, 1998; (ii) a protection order as contemplated in section 3 or 9 of the Protection from Harassment Act, 2011; or (iii) an order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force; or [(d)] (g) it is in the interests of justice to do so, issue a warrant for the arrest of the accused, and may, if satisﬁed that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to prison, which committal shall remain of force until the conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates the bail.’’.
30 35 Amendment of section 158 of Act 51 of 1977, as substituted by section 7 of Act 86 of 1996 and amended by section 68 of Act 32 of 2007 40 6.
Section 158 of the Criminal Procedure Act, 1977, is hereby amended— (a) by the substitution in subsection (2) for paragraph (a) of the following paragraph: ‘‘(a) A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness, irrespective of whether the witness is in or outside the Republic, or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.’’; and (b) by the addition after subsection (5) of the following subsection: ‘‘(6) For purposes of this section, a witness who is outside the Republic and who gives evidence by means of closed circuit television or similar electronic media, is regarded as a witness who was subpoenaed to give evidence in the court in question.’’.
45 50 Amendment of section 161 of Act 51 of 1977, as substituted by section 1 of Act 135 of 1991 55 7.
Section 161 of the Criminal Procedure Act, 1977, is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) In this section the expression ’viva voce’ shall[,]— 11 (a) (b) in the case of a [deaf and dumb] witness lacking the sense of hearing or the ability to speak, be deemed to include gesture-language [and,]; and in the case of a witness under the age of eighteen years or a witness who suffers from a physical, psychological, mental or emotional condition, which inhibits the ability of that witness to give his or her evidence viva voce, be deemed to include demonstrations, gestures or any other form of non-verbal expression.’’.
5 Amendment of section 170A of Act 51 of 1977, as inserted by section 3 of Act 135 of 1991, substituted by section 1 of Act 17 of 2001 and amended by section 68 of Act 32 of 2007 10 8.
Section 170A of the Criminal Procedure Act, 1977, is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness— (a) under the biological or mental age of eighteen years; (b) who suffers from a physical, psychological, mental or emotional condition; or (c) who is an older person as deﬁned in section 1 of the Older Persons Act, 2006 (Act No.
13 of 2006), to undue psychological, mental or emotional stress, trauma or suffering if to he or she testiﬁes at such proceedings, subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermedi- ary.’’; the court may, subject 15 20 (b) by the substitution in subsection (2) for paragraph (a) of the following 25 paragraph: ‘‘(a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary [under subsection (1)], except examination by the court, [shall] may take place in any manner other than through that intermediary.’’; (c) by the substitution for subsection (7) of the following subsection: ‘‘(7) The court shall provide reasons for refusing any application or request by the public prosecutor for the appointment of an intermediary [in respect of a child below the age of 14 years,] immediately upon refusal and such reasons shall be entered into the record of the proceedings.’’; and (d) by the addition after subsection (10) of the following subsections: ‘‘(11) Subject to subsection (13), any person who is competent to be appointed as an intermediary in terms of subsection (4)(a) must, before commencing with his or her functions in terms of this section, take an oath or make an affirmation subscribed by him or her, in the form set out below before the judicial officer presiding over the proceedings: ‘I, ........................ do hereby swear/truly affirm that, whenever I may be called upon to perform the functions of an intermediary, I shall, truly and correctly to the best of my knowledge and ability— (a) perform my functions as an intermediary; and (b) convey properly and accurately all questions put to witnesses and, where necessary, convey the general purport of any question to the witness, unless directed otherwise by the court’.
30 35 40 45 (12) (a) Subject to subsection (13), before a person is appointed to 50 perform the functions of an intermediary— (i) (ii) in a magistrate’s court for any district or for any regional division, the magistrate presiding over the proceedings; or in a Superior Court, proceedings, the judicial officer presiding over the must enquire into the competence of the person to be appointed as an intermediary.
(b) The enquiry contemplated in paragraph (a) must include, but is not limited to, the person’s— (i) ﬁtness as a person to be an intermediary; 55 60 12 (ii) experience which has a bearing on the role and functions of an intermediary; (iii) qualiﬁcations; (iv) knowledge which has a bearing on the role and functions of an (v) (vi) intermediary; language and communication proﬁciency; and ability to interact with a witness under the biological or mental age of eighteen years or a witness who suffers from a physical, psychological, mental or emotional condition, or a witness who is an older person as deﬁned in section 1 of the Older Persons Act, 2006.
(13) (a) The head of a court may, at his or her discretion and after holding an enquiry contemplated in subsection (12), issue a certiﬁcate in the form prescribed by the Minister by notice in the Gazette, to a person whom he or she has found to be competent to appear as an intermediary in the court concerned.
(b) Before the head of a court issues the certiﬁcate referred to in paragraph (a), he or she must cause the person who has been found competent to be appointed as an intermediary to take the oath or make the affirmation referred to in subsection (11) and must endorse the certiﬁcate with a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.
(c) A certiﬁcate contemplated in paragraph (a) may be accepted as proof— (i) of the competency of a person to be appointed as an intermediary in the court concerned; and (ii) of the fact that the person has taken the oath or made the affirmation contemplated in subsection (11), for purposes of this section, in any subsequent proceedings in terms of this Act, before the court concerned in respect of which a certiﬁcate contemplated in paragraph (a) was issued by the head of a court and it is not necessary for the magistrate or the judicial officer presiding over the proceedings of the court in question to administer the oath or affirmation or to hold an enquiry into the competence of the person to be appointed as an intermediary.
(d) Paragraph (c) must not be construed as prohibiting a magistrate or a judicial officer presiding over proceedings from holding an enquiry, at any stage of the proceedings, regarding the competence of a person to act as an intermediary.

(e) For the purposes of this section, ‘‘head of a court’’ means the most senior judicial officer of that court.’’.
Amendment of section 299A of Act 51 of 1977, as inserted by section 6 of Act 55 of 2003 and substituted by section 68 of Act 32 of 2007 and section 48 of Act 7 of 2013 9.
Section 299A of the Criminal Procedure Act, 1977, is hereby amended by the 45 substitution for subsection (1) of the following subsection: ‘‘(1) When a court sentences a person to imprisonment for— (a) murder or any other offence which involves the [intentional] killing of a (b) (c) (d) person; rape or compelled rape as contemplated in [sections] section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; robbery, where the wielding of a ﬁre-arm or any other dangerous weapon or the inﬂiction of grievous bodily harm or the robbery of a motor vehicle is involved; sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; (e) kidnapping; (f) any conspiracy, incitement or attempt to commit any offence contemplated in paragraphs (a) to (e); [or] 50 55 60 13 (g) offences as provided for in sections 4, 5 and 7 and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013; or (h) a period exceeding seven years for any offence, which that person committed against any person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with that person, it shall inform— (i) (ii) the complainant; or in the case of murder or any other offence contemplated in paragraph (a), any immediate relative of the deceased, if he or she is present that he or she has a right, subject to the directives issued by the Commissioner of Correctional Services under subsection (4), to make representations when placement of the prisoner on parole, on day parole or under correctional supervision is considered or to attend any relevant meeting of the parole board.’’.
Amendment of section 316B of Act 51 of 1977, as inserted by section 11 of Act 107 of 1990 10.
Section 316B of the Criminal Procedure Act, 1977, is hereby amended by the substitution for subsection (1) of the following subsection: ‘‘(1) Subject to subsection (2), the [attorney-general] National Director may, in circumstances, where a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute, appeal to the Appellate Division against a sentence imposed upon an accused [in a criminal case in] by a superior court sitting as a court of appeal in terms of section 310A or as a trial court.’’.
Amendment of Schedule 1 to Act 51 of 1977, as amended by section 17 of Act 26 of 1987, section 8 of Act 122 of 1998, section 68 of Act 32 of 2007, section 48 of Act 7 of 2013, and section 11 of Act 13 of 2013 11.
Schedule 1 to the Criminal Procedure Act, 1977, is hereby amended by the substitution for the offence ‘‘Assault, when a dangerous wound is inﬂicted’’ of the following offence: ‘‘Assault— (a) when a dangerous wound is inﬂicted; (b) (c) where a person is threatened— involving the inﬂiction of grievous bodily harm; or (i) with grievous bodily harm; or (ii) with a ﬁre-arm or dangerous weapon, as deﬁned in section 1 of the Dangerous Weapons Act, 2013 (Act No.

15 of 2013).’’.
15 of 2013).’’.

5 10 15 20 25 30 35 Amendment of Part II of Schedule 2 to Act 51 of 1977, as substituted by section 68 of Act 32 of 2007 and amended by section 48 of Act 7 of 2013 and section 11 of Act 13 of 2013 40 12.
Part II of Schedule 2 to the Criminal Procedure Act, 1977, is hereby amended by the substitution for the offence ‘‘Assault, when a dangerous wound is inﬂicted’’ of the following offence: ‘‘Assault— (a) when a dangerous wound is inﬂicted; (b) (c) where a person is threatened— involving the inﬂiction of grievous bodily harm; or 45 (i) with grievous bodily harm; or (ii) with a ﬁre-arm or dangerous weapon, as deﬁned in section 1 of the 50 Dangerous Weapons Act, 2013.’’.
14 Amendment of Schedule 7 to Act 51 of 1977, as added by section 10 of Act 85 of 1997, amended by section 10 of Act 34 of 1998 and section 16 of Act 62 of 2000 and substituted by section 68 of Act 32 of 2007 13.
Schedule 7 to the Criminal Procedure Act, 1977, is hereby amended by the substitution for the offence ‘‘Assault, involving the inﬂiction of grievous bodily harm’’ of the following offence: ‘‘Assault— (a) when a dangerous wound is inﬂicted; (b) (c) where a person is threatened— involving the inﬂiction of grievous bodily harm; or (i) with grievous bodily harm; or (ii) with a ﬁre-arm or dangerous weapon, as deﬁned in section 1 of the Dangerous Weapons Act, 2013 (Act No.

15 of 2013)’’.
15 of 2013)’’.

Amendment of Schedule 8 to Act 51 of 1977, as added by section 5 of Act 37 of 2013 14.
Schedule 8 to the Criminal Procedure Act, 1977, is hereby amended by the substitution for the offence ‘‘Assault, when a dangerous wound is inﬂicted’’ of the following offence: ‘‘Assault— (a) when a dangerous wound is inﬂicted; (b) (c) where a person is threatened— involving the inﬂiction of grievous bodily harm; or (i) with grievous bodily harm; or (ii) with a ﬁre-arm or dangerous weapon, as deﬁned in section 1 of the Dangerous Weapons Act, 2013 (Act No.

15 of 2013).’’.
15 of 2013).’’.

Amendment of Part I of Schedule 2 to Act 105 of 1997, as amended by section 37 of Act 62 of 2000 and section 27 of Act 33 of 2004, section 68 of Act 32 of 2007, section 5 of Act 38 of 2007, section 22 of Act 66 of 2008, section 48 of Act 7 of 2013 and section 25 of Act 8 of 2017 15.
Part I of Schedule 2 to the Criminal Law Amendment Act, 1997, is hereby amended— (a) by the substitution for the offence ‘‘Murder’’ of the following offence: ‘‘Murder, when— (a) (b) it was planned or premeditated; the victim was— (i) a law enforcement officer performing his or her functions as such, whether on duty or not; [or] a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any court; or a person under the age of 18 years; (ii) (iii) (c) (d) (e) (ii) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences: (i) rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amend- ment Act, 2007, respectively; or robbery with aggravating circumstances as deﬁned in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977); the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy; the victim was killed in order to unlawfully remove any body part of the victim, or as a result of such unlawful removal of a body part of the victim; [or] 15 (f) (g) the death of the victim resulted from, or is directly related to, any offence contemplated in section 1(a) to (e) of the Witchcraft Suppression Act, 1957 (Act 3 of 1957)[.
]; or the death of the victim resulted from physical abuse or sexual abuse, as contemplated in paragraphs (a) and (b) of the deﬁnition of ‘‘domestic violence’’ in section 1 of the Domestic Violence Act, 1998 (Act No.
116 of 1998), by the accused who is or was in a domestic relationship, as deﬁned in section 1 of that Act, with the victim.’’; (b) by the substitution for paragraphs (a), (b) and (c) of the offence ‘‘Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007’’ of the following paragraphs: ‘‘(a) when committed— (i) (ii) in the circumstances where the accused is convicted of the offence of rape and evidence adduced at the trial of the accused proves that the victim was also raped by— (aa) any co-perpetrator or accomplice; or (bb) a person, who was compelled by any co-perpetrator or accomplice, to rape the victim, as contemplated in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question; in the circumstances where the accused is convicted of the offence of rape on the basis that the accused acted in the execution or furtherance of a common purpose or conspiracy and evidence adduced at the trial of the accused proves that the victim was raped by more than one person who acted in the execution or furtherance of a common purpose or conspiracy to rape the victim, irrespective of whether or not any other person who so acted in the execution or furtherance of a common purpose or conspiracy has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question; (iii) by the accused who— (aa) has previously been convicted of the offence of rape or compelled rape; or (bb) has been convicted by the trial court of two or more offences of rape or the offences of rape and compelled rape, irrespective of— (aaa) whether the rape of which the accused has so been convicted constitutes a common law or statutory offence; (bbb) the date of the commission of any such offence of which the accused has so been convicted; (ccc) whether the accused
 has been sentenced in respect of any such offence of which the accused has so been convicted; (ddd) whether any such offence of which the accused has so been convicted was committed in respect of the same victim or any other victim; or (eee) whether any such offence of which the accused has so been convicted was committed as part of the same chain of events, on a single occasion or on different occasions; or (iv) by a person, knowing that he has the acquired immune deﬁciency syndrome or the human immunodeﬁciency virus; (b) where the victim— (i) (iA) (ii) is a person under the age of [16] 18 years; is an older person as deﬁned in section 1 of the Older Persons Act, 2006 (Act 13 of 2006); is a [physically disabled] person with a disability who, due to his or her [physical] disability, is rendered [particularly] vulner- able; [or] 16 (iii) (iv) is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or is or was in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused; or (c) involving the inﬂiction of grievous bodily harm.’’; and (c) by the substitution for paragraphs (a), (b) and (c) of the offence ‘‘Compelled rape as contemplated in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007’’ of the following paragraphs: ‘‘(a) when committed— (i) in the circumstances where the accused is convicted of the offence of compelled rape and evidence adduced at the trial of the accused proves that the victim was also raped— (aa) as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by any co-perpetrator or accomplice; or (bb) by a person, who was compelled by any co-perpetrator or (ii) accomplice, to rape the victim, irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged
 with, or is standing trial in respect of, the offence in question; in the circumstances where the accused is convicted of the offence of compelled rape on the basis that the accused acted in the execution or furtherance of a common purpose or conspiracy and evidence adduced at the trial proves that the victim was raped by more than one person who acted in the execution or furtherance of a common purpose or conspiracy to rape the victim, irrespective of whether or not any other person who so acted in the execution or furtherance of a common purpose or conspiracy has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question; (iii) by the accused who— (aa) has previously been convicted of the offence of compelled rape or rape; or (bb) has been convicted by the trial court of two or more offences of compelled rape or the offences of compelled rape and rape, irrespective of— (aaa) whether the rape of which the accused has so been convicted constitutes a common law or statutory offence; (bbb) the date of the commission of any such offence of which the accused has so been convicted; (ccc) whether the accused has been sentenced in respect of any such offence of which the accused has so been convicted; (ddd) whether any such offence of which the accused has so been convicted was committed in respect of the same victim or any other victim; or (eee) whether any such offence of which the accused has so been convicted was committed as part of the same chain of events, on a single occasion or on different occasions; or (iv) under circumstances where the accused knows that the person who is compelled to rape the victim has the acquired immune deﬁciency syndrome or the human immunodeﬁciency virus; (b) where the victim— (i) (iA) (ii) (iii) is a person under the age of [16] 18 years; is an older person as deﬁned in section 1 of the Older Persons Act, 2006; is a [physically disabled] person with a disability who, due to his or her [physical]
 disability, is rendered [particularly] vulner- able; [or] is a person who is mentally disabled as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007; or 17 (iv) is or was in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused; or (c) involving the inﬂiction of grievous bodily harm.’’.
Amendment of Part II of Schedule 2 to Act 105 of 1997, as amended by section 36 of Act 12 of 2004, section 27 of Act 33 of 2004 and section 6 of Act 18 of 2015 5 16.

Part II of Schedule 2 to the Criminal Law Amendment Act, 1997, is hereby amended by the addition of the following offences: ‘‘Attempted murder.
Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, in circumstances other than those referred to in Part I.
Sexual exploitation of a child or sexual exploitation of a person who is mentally disabled as contemplated in section 17 or 23, or using a child for child pornography or using a person who is mentally disabled for pornographic purposes, as contemplated in section 20(1) or 26(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.’’.
Amendment of Part III of Schedule 2 to Act 105 of 1997, as substituted by section 68 of Act 32 of 2007, and amended by section 48 of Act 7 of 2013 17.

Part III of Schedule 2 to the Criminal Law Amendment Act, 1997, is hereby amended— (a) by the deletion of the following offences: ‘‘[Rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively in circumstances other than those referred to in Part I.
Sexual exploitation of a child or sexual exploitation of a person who is mentally disabled as contemplated in section 17 or 23 or using a child for child pornography or using a person who is mentally disabled for pornographic purposes, as contemplated in section 20 (1) or 26 (1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
]’’; and (b) by the insertion of the following offence: ‘‘Assault with intent to do grievous bodily harm— (a) on a child— (i) under the age of 16 years; or (ii) either 16 or 17 years of age and the age difference between the child and the person who has been convicted of the offence is more than four years; or 10 15 20 25 30 35 (b) where the victim is or was in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused.’’.
40 Insertion of sections 37A, 37B and 37C in Act 10 of 2013 18.

The following sections are hereby inserted in the Superior Courts Act, 2013, after section 37: ‘‘Evidence through intermediaries in proceedings other than crimi- nal proceedings 45 37A.
(1) A Superior Court may, on application by any party to proceedings, other than criminal proceedings before the court, or of its own accord and subject to subsection (4), appoint a competent person as an intermediary in order to enable a witness— (a) under the biological or mental age of 18 years; (b) who suffers from a physical, psychological, mental or emotional 50 condition; or (c) who is an older person as deﬁned in section 1 of the Older Persons Act, 2006 (Act No.
13 of 2006), 18 to give his or her evidence through that intermediary, if it appears to that court that the proceedings would expose such a witness to undue psychological, mental or emotional stress, trauma or suffering if he or she testiﬁes at such proceedings.

(2) (a) No examination, cross-examination or re-examination of any witness in respect of whom a court has appointed an intermediary, except examination by the court, may take place in any manner other than through that intermediary.
(b) The intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.
(3) If a court appoints an intermediary in terms of subsection (1), the court may direct that the relevant witness gives his or her evidence at any place— (a) which is informally arranged to set that witness at ease; (b) which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and (c) which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary, as well as that witness, during his or her testimony.
(4) (a) The Minister may, by notice in the Gazette, determine the persons or the category or class of persons who are competent to be appointed as intermediaries.
(b) An intermediary appearing at proceedings in terms of this section who is not in the full-time employment of the State must be paid such traveling and subsistence and other allowances in respect of the services rendered by him or her as is prescribed by the rules made— (i) by the Rules Board for Courts of Law under the Rules Board for (ii) Courts of Law Act, 1985, in respect of the High Court; or in terms of section 29 of this Act, in respect of the Constitutional Court.
(5) A court must provide reasons for refusing any application or request for the appointment of an intermediary, immediately upon refusal and such reasons must be entered into the record of the proceedings.

(6) An intermediary referred to in subsection (1) may be summoned to appear in court on a speciﬁed date and at a speciﬁed place and time to act as an intermediary.
(7) If, at the commencement of or at any stage before the completion of the proceedings concerned, an intermediary appointed by the court is for any reason absent, becomes unable to act as an intermediary, in the opinion of the court, or dies, the court may, in the interests of justice and after due consideration of the arguments put forward by the parties— (a) postpone the proceedings in order to obtain the intermediary’s (b) presence; summons the intermediary to appear before the court to advance reasons for being absent; (c) direct that the appointment of the intermediary be revoked and appoint another intermediary; or (d) direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary.
50 (8) The court must immediately give reasons for any direction or order referred to in subsection (7)(c) or (d), which reasons must be entered into the record of the proceedings.

Oath and competency of intermediaries 37B.
(1) Subject to subsection (3), any person who is competent to be appointed as an intermediary in terms of section 37A(4) of this Act must, before commencing with his or her functions in terms of section 37A, take an oath or make an affirmation subscribed by him or her, in the form set out below, before the judicial officer presiding over the proceedings: 55 19 ‘I, ............................ do hereby swear/truly affirm that, whenever I may be called upon to perform the functions of an intermediary, I shall truly and correctly, to the best of my knowledge and ability— (a) perform my functions as an intermediary; and (b) convey properly and accurately all questions put to witnesses and, where necessary, convey the general purport of any question to the witness, unless directed otherwise by the court’.
(2) (a) Subject to subsection (3), before a person is appointed to perform the functions of an intermediary in a Superior Court, the judicial officer presiding over the proceedings must enquire into the competence of the person to be appointed as an intermediary.
(b) The enquiry contemplated in paragraph (a) must include, but is not limited to, the person’s— (i) ﬁtness as a person to be an intermediary; (ii) experience which has a bearing on the role and functions of an intermediary; (iii) qualiﬁcations; (iv) knowledge which has a bearing on the role and functions of an (v) (vi) intermediary; language and communication proﬁciency; and ability to interact with a witness under the biological or mental age of 18 years or a witness who suffers from a physical, psychological, mental or emotional condition, or a witness who is an older person as deﬁned in section 1 of the Older Persons Act, 2006.
(3) (a) The head of a court may, at his or her discretion and after holding an enquiry contemplated in subsection (2), issue a certiﬁcate in the form prescribed by the Minister by notice in the Gazette, to a person whom he or she has found to be competent to appear as an intermediary in a Superior Court.
(b) Before the head of a court issues a certiﬁcate referred to in paragraph (a), he or she must cause the person who has been found competent to be appointed as an intermediary, to take the oath or make the affirmation referred to in subsection (1) and must endorse the certiﬁcate with a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.
(c) A certiﬁcate contemplated in paragraph (a) may be accepted as proof— (i) of the competency of a person to be appointed as an intermediary; 40 and (ii) of the fact that the person has taken the oath or made the affirmation contemplated in subsection (1), for purposes of this section, in any subsequent proceedings in terms of this Act, before a Superior Court and it is not necessary for the presiding judicial officer presiding over the proceedings in question to administer the oath or affirmation or to hold an enquiry into the competence of the person to be appointed as an intermediary.
(d) Paragraph (c) must not be construed as prohibiting a judicial officer who presides over proceedings in a Superior Court from holding an enquiry, at any stage of proceedings, regarding the competence of a person to act as an intermediary.

Evidence through remote audiovisual link in proceedings other than criminal proceedings 37C.
(1) A Superior Court may, on application by any party to proceedings before that court or of its own accord, order that a witness, irrespective of whether the witness is in or outside the Republic, if the witness consents thereto, give evidence by means of audiovisual link.
(2) A court may make an order contemplated in subsection (1) only if— (a) it appears to the court that to do so would— 45 50 55 60 20 (i) (aa) prevent unreasonable delay; (bb) save costs; (cc) be convenient; or (dd) prevent the likelihood that any person might be preju- diced or harmed if he or she testiﬁes or is present at such proceedings; and (ii) otherwise be in the interests of justice; facilities therefor are readily available or obtainable at the court; and the audiovisual facilities that are used by the witness or at the court enable— (i) persons at the courtroom to see, hear and interact with the (ii) witness giving evidence; and the witness who gives evidence to see, hear and interact with the persons at the courtroom.
(b) (c) (3) The court may make the giving of evidence in terms of subsection (1) subject to such conditions as it may deem necessary in the interests of justice.

(4) The court must provide reasons for— (a) allowing or refusing an application by any of the parties; or (b) its order and any objection raised by the parties against the order, as contemplated in subsection (1).
(5) For purposes of this Act, a witness who gives evidence by means of audiovisual link, is regarded as a witness who was subpoenaed to give evidence in the court in question.

(6) For purposes of this section ‘‘audiovisual link’’ means facilities that enable both audio and visual communications between a witness and persons at a courtroom in real-time as they take place.’’.

Short title and commencement 19.


This Act is called the Criminal and Related Matters Amendment Act, 2020, and comes into operation on a date ﬁxed by the President by proclamation in the Gazette.

5 10 15 20 25 30 21 MEMORANDUM ON THE OBJECTS OF THE CRIMINAL AND RELATED MATTERS AMENDMENT BILL 1.
PURPOSE OF BILL The primary aim of the Criminal and Related Matters Amendment Bill, 2020 (the ‘‘Bill’’), is to amend numerous Acts, which are administered by the Department of Justice and Constitutional Development (the ‘‘Department’’) and are intended to— ● address gender-based violence and offences committed against vulnerable persons; and ● provide for additional procedures to reduce secondary victimisation of vulnerable persons in court proceedings.

2.
2.

OBJECTS OF BILL 2.1 Clauses 1 and 18 Clause 1 inserts new sections 51A, 51B and 51C in the Magistrates’ Courts Act, 1944 (Act No.

32 of 1944) and clause 18 inserts new sections 37A, 37B and 37C in the Superior Courts Act, 2013 (Act No.

10 of 2013).

2.1.1 It is widely recognised that a child witness must be protected from undue mental stress or suffering while giving evidence.
Evidence through intermediaries is widely recognised as an effective procedure in criminal proceedings to protect a child witness or complainant.

Currently, the intermediary service is available to a child witness or complainant in criminal proceedings.

The intermediary service is not available to any other witness or complainant who may be exposed to similar undue mental stress, trauma or suffering.
The intermediary service is also not available in respect of any proceedings, other than criminal proceedings.

The proposed new sections 51A and 37A aim to extend the intermediary service— (a) ﬁrstly, to a witness who suffers from a physical, psychological, mental or emotional condition, and to older persons, as deﬁned in the Older Persons Act, 2006 (Act No.

13 of 2006); and secondly, to proceedings other than criminal proceedings.
(b) 2.1.2 The proposed new sections 51A and 37A provide for the following: (a) A presiding judicial officer may, on application by any party to civil proceedings or of its own accord, appoint an intermediary in order to enable a witness under the biological or mental age of 18 years, or a witness who suffers from a physical, psychological, mental or emotional condition, or a witness who is an older person as deﬁned in the Older Persons Act, 2006, to give his or her evidence through that intermediary, if it appears to the court that the proceedings would expose such a witness to undue psychological, mental or emotional stress, trauma or suffering if he or she testiﬁes at such proceedings.
(b) Where a judicial officer appoints an intermediary, no examina- tion, cross-examination or re-examination of any witness may take place in any manner other than through the intermediary and the intermediary may, unless the court directs otherwise, convey the general purport of any question to the relevant witness.
(c) Where a judicial officer appoints an intermediary, the court may direct that the relevant witness gives his or her evidence at any place—  which is informally arranged to set that witness at ease;  which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and  which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other 22 devices, that intermediary, as well as that witness, during his or her testimony.
(d) The Cabinet member responsible for the administration of justice may, by notice in the Gazette, determine the persons or the category or class of persons who are competent to be appointed as intermediaries.

(e) An intermediary appearing at proceedings, who is not in the full-time employment of the State, will be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as prescribed by the Rules Board.
(f) A court must provide reasons for refusing any application or request for the appointment of an intermediary, immediately upon refusal, which reasons must be entered into the record of the proceedings.

(h) (g) To ensure that an intermediary attends proceedings, the interme- diary must be summoned to appear in court on a speciﬁed date and at a speciﬁed place and time to act as an intermediary.
If an intermediary appointed by the court is, for any reason, absent, becomes unable to act as an intermediary or dies, the court in question may, in the interests of justice and after due consideration of the arguments put forward by the parties, postpone the proceedings in order to obtain the intermediary’s presence, summons the intermediary to appear before the court to advance reasons for being absent, direct that the appointment of the intermediary be revoked and that another intermediary be appointed, or direct that the appointment of the intermediary be revoked and that the proceedings continue in the absence of an intermediary.
2.1.3 The proposed new sections 51B and 37B provide for the oath and competency of intermediaries appointed under sections 51A and 37A.

These sections provide for the following: (a) An intermediary must, before commencing with his or her functions, take an oath or make an affirmation in the prescribed form.
(b) Before a person is appointed to perform the functions of an intermediary, the judicial officer presiding over the proceedings must enquire into the competence of the person to be appointed as an intermediary.
(c) The head of a court may, however, at his or her discretion and after holding an enquiry into the competence of a person to be appointed as an intermediary, issue a certiﬁcate in the form prescribed by the Minister, by notice in the Gazette, to a person whom he or she has found to be competent, to appear as an intermediary in a court after the person has taken the oath or made the affirmation referred to in paragraph (a).
In terms of this section, such a certiﬁcate may be accepted as proof of the competency of a person to be appointed as an intermediary and of the fact that the person has taken the oath or made the affirmation contemplated in paragraph (a) for purposes of any subsequent proceedings.

2.1.4 The proposed new sections 51C and 37C provide for evidence through audiovisual link in proceedings other than criminal proceed- ings.
This procedure is recognised in criminal proceedings by virtue of section 158 of the Criminal Procedure Act, 1977 (Act No.

51 of 1977).

Neither the Magistrates’ Courts Act, 1944, nor the Superior Courts Act, 2013, expressly recognises this procedure.
In terms of the two proposed new sections a court may, on application by any party to proceedings or of its own accord, order that a witness, irrespective of whether the witness is in or outside the Republic, if the witness consents thereto, may give evidence by means of a remote audiovisual link— 23  if it appears to the court that to do so would prevent unreasonable delay, save costs, be convenient or prevent prejudice or harm that may result to a person if he or she testiﬁes or is present at such proceedings and it is otherwise in the interests of justice; and  if the required facilities are readily available or obtainable at the court.
The court may make the giving of evidence through audiovisual link subject to such conditions as it may deem necessary in the interests of justice.

The section further provides that a witness who gives evidence by means of audiovisual link, is regarded as a witness who has been subpoenaed to give evidence in the court in question.
2.2 Clause 2 2.2.1 Section 59(1) of the Criminal Procedure Act, 1977, provides that an accused who is in custody in respect of any offence, other than an offence referred to in Part II or Part III of Schedule 2 to that Act, may, before his or her ﬁrst appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation.
The offences listed in Parts II and III of Schedule 2 include those of treason, sedition, murder, rape or compelled rape, sexual offence against a child or a person who is mentally disabled, offences pertaining to the trafficking in persons, robbery, assault, housebreaking, theft, fraud and forgery or uttering involving amounts more than R2 500, public violence, arson, kidnap- ping and childstealing.
2.2.2 Clause 2 seeks to amend section 59(1), to provide that, in addition to an offence referred to in Part II or Part III of Schedule 2 to the Criminal Procedure Act, 1977, an accused may not be released on bail before his or her ﬁrst appearance in a lower court in respect of the following: (a) An offence against a person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998 (Act No.

116 of 1998).
A ‘‘domestic relationship’’ is deﬁned in the Domestic Violence Act, 1998, as a relationship between a complainant and a respondent in any of the following ways: (i) They are or were married to each other, including marriage (ii) (iv) (iii) according to any law, custom or religion; they (whether they are of the same or of the opposite sex) live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other, or are not able to be married to each other; they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time); they are family members related by consanguinity, affinity or adoption; they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or they share or recently shared the same residence.
(b) An offence referred to in section 17(1)(a) of the Domestic Violence Act, 1998.

Section 17(1)(a) of the Domestic Violence Act, 1998, provides that a person who contravenes any prohibi- tion, condition or obligation of an interim or ﬁnal protection order, is guilty of an offence and liable on conviction to a ﬁne or imprisonment for a period not exceeding ﬁve years or to both such ﬁne and such imprisonment.
(vi) (v) (c) An offence referred to in section 18(1)(a) of the Protection from Harassment Act, 2011 (Act No.

17 of 2011).

Section 18(1)(a) of the Protection from Harassment Act, 2011, provides that a person who contravenes any prohibition, condition or obligation of an 24 interim or ﬁnal protection order, is guilty of an offence and liable on conviction to a ﬁne or imprisonment for a period not exceeding ﬁve years.
2.3 Clause 3 2.3.1 Section 59A of the Criminal Procedure Act, 1977, provides that a Director of Public Prosecutions or an authorised prosecutor may, in respect of the offences referred to in Schedule 7 to that Act and in consultation with the police official charged with the investigation, authorise the release of an accused on bail.
The offences mentioned in Schedule 7, which qualify for release on bail by a prosecutor, include public violence, culpable homicide, assault involving the inﬂiction of grievous bodily harm, arson, robbery, housebreaking, theft involving amounts that do not exceed R20 000, malicious injury to property and the possession of drugs.
2.3.2 Clause 3 of the Bill amends section 59A of the Criminal Procedure Act, 1977, to exclude an offence— (a) against a person in a domestic relationship, as deﬁned in section (b) 1 of the Domestic Violence Act, 1998; or referred to in— (i) (ii) section 17(1)(a) of the Domestic Violence Act, 1998; section 18(1)(a) of the Protection from Harassment Act, 2011; or any law, that criminalises a contravention of any prohibi- tion, condition, obligation or an order, that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, (iii) from the ambit of the application of section 59A.
2.3.3 The effect of these amendments is that the accused must be kept in custody in respect of the offences referred to in paragraph 2.3.2, until he or she appears in court, whereafter he or she may, in terms of section 60 of the Criminal Procedure Act, 1977, make an application to the court to be released on bail.

2.4 Clause 4 2.4.1 Section 60 of the Criminal Procedure Act, 1977, regulates bail applications of an accused who is in custody in respect of an offence.
2.4.2 In terms of section 60(2) of the Criminal Procedure Act, 1977, in bail proceedings, a court, among others— (a) may postpone the proceedings if the court has insufficient information or evidence at its disposal to reach a decision on the bail application (subsection (2)(a)); (b) may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an informal manner the information that is needed for its decision regarding bail (subsection (2)(b)); (c) may, in respect of matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused, as the case may be, that evidence be adduced (subsection (2)(c)); or (d) must, where the prosecutor does not oppose bail in respect of matters referred to in section 60(11)(a) and (b), require of the prosecutor to place on record the reasons for not opposing the bail application (subsection (2)(d)).
Clause 4(a) of the Bill amends section 60(2)(d) of the Criminal Procedure Act, 1977, to include a reference to paragraph (c) of subsection (11).
Clause 4(f) inserts paragraph (c) in section 60(11), to refer to any offence referred to in section 59(1)(a)(ii) or (iii) (discussed in paragraph 2.2.2), namely any offence against a person in a domestic 25 relationship as deﬁned in section 1 of the Domestic Violence Act, 1998, an offence referred to in section 17(1)(a) of the Domestic Violence Act, 1998, an offence referred to in section 18(1)(a) of the Protection from Harassment Act, 2011, or an offence in any law that criminalises a contravention of any prohibition, condition, obligation or an order, that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused.
2.4.3 In terms of section 60(2A) of the Criminal Procedure Act, 1977, the court must, before reaching a decision on a bail application, take into consideration any pre-trial services report regarding the desirability of releasing an accused on bail, if such a report is available.

Clause 4(b) of the Bill expands the provision by obliging the court to also take into consideration the view of any person against whom the offence in question was allegedly committed, regarding his or her safety.
2.4.4 Section 60(4) of the Criminal Procedure Act, 1977, lists various grounds which do not permit the release of an accused from custody, among others, as provided for in paragraph (a) of section 60(4), where there is a likelihood that the accused, if he or she is to be released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence.
Clause 4(c) of the Bill amends paragraph (a) to include the likelihood that the accused, if released on bail, will endanger the safety of the person against whom the offence in question was allegedly committed.

2.4.5 Section 60(5) of the Criminal Procedure Act, 1977, provides guidance to the court when considering the ground referred to in section 60(4)(a) (discussed above).
Clause 4(d) of the Bill proposes various amendments to the factors which a court may consider to establish whether there is the likelihood that the accused, if released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed or any other particular person or will commit a Schedule 1 offence, among others, any disposition of an accused to commit— (a) an offence against any person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998; or (b) an offence referred to in—  section 17(1)(a) of the Domestic Violence Act, 1998;  section 18(1)(a) of the Protection from Harassment Act, 2011; or  any law that criminalises a contravention of any prohibition, condition, obligation or an order, that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused.
2.4.6 Section 60(10) of the Criminal Procedure Act, 1977, provides that even if the prosecution does not oppose bail, the court has a duty to weigh up the personal interests of the accused against the interests of justice.

Clause 4(e) amends section 60(10), the ‘‘interests of justice’’ should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.
to clarify that 2.4.7 In terms of section 60(11) of the Criminal Procedure Act, 1977, where an accused is charged— (a) with an offence contemplated in Schedule 6, the accused must adduce evidence which satisﬁes the court that exceptional circumstances exist which, in the interests of justice, permit his or her release on bail; or 26 (b) with an offence contemplated in Schedule 5, the accused must adduce evidence which satisﬁes the court that the interests of justice permit his or her release.
Clause 4(f) of the Bill inserts paragraph (c) to the aforementioned provisions to provide that, where an accused is charged with an offence contemplated in section 59(1)(a)(ii) or (iii) (see paragraph 2.2.2), the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisﬁes the court that the interests of justice permit his or her release.
2.4.8 Section 60(11B)(a) of the Criminal Procedure Act, 1977, provides that during bail proceedings the accused is obliged to inform the court of his or her previous convictions and pending charges.
Clause 4(h) of the Bill amends this provision to further oblige the accused to inform the court of whether—  an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and  the accused is, or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correc- tional supervision, day parole, parole or medical parole as contem- plated in section 73 of the Correctional Services Act, 1998 (Act No.
111 of 1998).

2.4.9 Section 60(12) of the Criminal Procedure Act, 1977, provides that the court may make the release of an accused on bail subject to conditions which, in the court’s opinion, are in the interests of justice.

Clause 4(i) of the Bill amends this provision to clarify that the ‘‘interests of justice’’ should be interpreted to include, but not be limited to, the safety of any person against whom the offence in question has allegedly been committed.
Clause 4(i) further inserts a new provision in section 60(12), to provide that if the court is satisﬁed that the interests of justice permit the release of an accused on bail as provided for in section 60(1), in respect of an offence that was allegedly committed by the accused against any person in a domestic relation- ship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused, and a protection order as contemplated in that Act has not been issued against the accused, the court must after holding an enquiry, issue a protection order referred to in section 6 of that Act against the accused, whereafter the provisions of that Act shall apply.
2.5 Clause 5 2.5.1 Section 68 of the Criminal Procedure Act, 1977, provides for the cancellation of bail.
In terms of section 68(1), a court before which a charge is pending in respect of which bail has been granted may, whether the accused has been released or not, upon information on oath that— (a) the accused is about to evade justice or is about to abscond in order to evade justice; the accused has interfered or threatened or attempted to interfere with witnesses; the accused has defeated or attempted to defeat the ends of justice; the accused poses a threat to the safety of the public or of a particular person; the accused has not disclosed or has not correctly disclosed all his or her previous convictions in the bail proceedings or where his (b) (c) (d) (e) 27 (f) or her true list of previous convictions has come to light after his or her release on bail; further evidence has since become available or factors have arisen, including the fact that the accused has furnished false information in the bail proceedings, which might have affected the decision to grant bail; or it is in the interests of justice to do so, (g) issue a warrant for the arrest of the accused and make such order as it may deem proper, including an order that the bail be cancelled and that the accused be committed to prison until the conclusion of the relevant criminal proceedings.
In terms of section 68(2), any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under section 68(1), upon the application of any peace officer and upon a written statement on oath by such officer that similar grounds as referred to in section 68(1), are present, issue a warrant for the arrest of the accused, and may, if satisﬁed that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to prison, which committal shall remain of force until the conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates the bail.
2.5.2 Clause 5 amends section 68(1) and (2), respectively, to provide for the following additional grounds on which bail may be cancelled: (a) The accused contravened any prohibition, condition, obligation imposed in terms of— (i) (ii) section 7 of the Domestic Violence Act, 1998; section 10(1) and (2) of the Protection from Harassment Act, 2011; or an order in terms of any other law, that was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused; (iii) (b) (c) (ii) the accused has not disclosed that— (i) an order as contemplated in section 5 or 6 of the Domestic Violence Act, 1998; an order as contemplated in section 3 or 9 of the Protection from Harassment Act, 2011; or an order in terms of any other law, (iii) was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused and whether such an order is still of force; the accused has not disclosed or correctly disclosed that he or she is or was, at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.
2.5.3 Clause 5 further amends section 68(1)(d) and (2)(a)(iv) (see paragraph 2.5.1(d) above) to extend the current ambit of those provisions to instances where the accused poses a threat to the safety of any person against whom the offence in question was allegedly committed, or of any other particular person.
2.6 Clause 6 2.6.1 Section 158(1) of the Criminal Procedure Act, 1977, provides that all criminal proceedings in any court must take place in the presence of the accused person, unless otherwise provided by law.

In terms of section 158(2) a court may, on its own initiative or an application by the prosecutor, order that a witness or an accused person gives his or her evidence by means of closed circuit television or similar electronic media, but only if the witness or the accused person agrees to this.
A court may make a similar order on the application of an accused 28 person or a witness.

The court may, however, only make such an order if the necessary facilities are readily available or obtainable.
Further- more, the court can only make such an order if to do so would— (a) prevent unreasonable delay; (b) save costs; (c) be convenient; (d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or (e) prevent the likelihood that prejudice or harm might result to any person if he or she testiﬁes or is present at such proceedings.
When making such an order the court may, in order to ensure a fair and just trial, make the giving of such evidence subject to the conditions the court deems necessary.

2.6.2 There are differing views and High Court judgments on whether section 158 can be invoked to obtain evidence from a witness who is based abroad.
In order to address this uncertainty, clause 6 amends section 158 of the Criminal Procedure Act, 1977, in order to clarify that a court can order that a witness who consents thereto, irrespective of whether the witness is in or outside the Republic, may give evidence by means of closed circuit television or similar electronic media.

2.7 Clause 7 2.7.1 Section 161 of the Criminal Procedure Act, 1977, requires a witness in criminal proceedings to give evidence viva voce.
In respect of a witness who is deaf and dumb, the expression viva voce includes gesture-language, and in respect of a witness under the age of eighteen, includes demonstrations, gestures or any other non-verbal expressions.
2.7.2 In line with the amendments to section 170A (discussed below), clause 7 amends section 161 of the Criminal Procedure Act, 1977, to extend the expression ‘viva voce’ in respect of a witness who suffers from a physical, psychological, mental or emotional condition which inhibits the ability of that witness to give his or her evidence viva voce, to include demonstrations, gestures or any other form of non-verbal expression.
Clause 7 further substitutes the description of a ‘‘deaf and dumb’’ witness for the description of a witness lacking the sense of hearing or the ability to speak.
2.8 Clause 8 2.8.1 Section 170A of the Criminal Procedure Act, 1977, provides that in any criminal proceedings, if it appears to the court that a witness under the biological or mental age of eighteen years may be exposed to undue mental stress or suffering, the court may appoint an intermedi- ary in order to enable the witness to give evidence through an intermediary.
As indicated in paragraph 2.1, the provision of interme- diary service is intended to protect a witness from undue mental stress or suffering while giving evidence.

2.8.2 Clause 8 further amends section 170A in order to extend the intermediary service to witnesses who suffer from a physical, psychological, mental or emotional condition, and to older persons as deﬁned in the Older Persons Act, 2006.
The amendment provides further that the court may order the use of intermediary service, if it appears to the court that the proceedings would expose such a witness to undue psychological or emotional stress, trauma or suffering if he or she testiﬁes at such proceedings.

This is in addition to undue mental stress or suffering which is currently provided for in the section.
Section 170A(7) requires the court to provide reasons for refusal immediately upon refusal in respect of a child under the age of 14 29 years.

This section is amended to remove reference to a child under the age of 14 years.

The amended subsection now provides that the court shall provide reasons immediately upon refusal of any application for the appointment of an intermediary, so that the protective measure covers every witness referred to in this section.
2.8.3 The Department has created the post of intermediaries on its establishment.

The aim is to ensure that a permanent group of intermediaries is available at all courts.

The appointment of permanent intermediaries necessitates certain amendments to section 170A, which currently regulates the giving of evidence through intermediar- ies.

The purpose of the amendments is to promote functional efficiency.
At present, section 170A does not regulate the taking of the oath or making an affirmation by intermediaries, nor does it deal with the competency of persons to be appointed as intermediaries.

Representatives of the magistracy have indicated that an enquiry into the competency of a person who is to be appointed as an intermediary and the taking of the oath by intermediaries take up valuable court time.

In some instances, the same person appears before a court as an intermediary on numerous occasions.
The court is obliged to enquire into the competency of that person to act as an intermediary and the intermediary must, on every occasion, take the oath or make an time.

In affirmation.

This unnecessary procedure takes up court addition, the form of the oath or affirmation that an intermediary must take is not prescribed.
It is suggested that section 170A should also provide for all of these aspects, in the same manner as in clause 1, which purports to regulate the position of intermediaries in civil proceedings.
As a result, subsections (11), (12) and (13) are inserted in section 170A, in order to provide— (a) (b) (c) (d) for the form of the oath to be taken or affirmation to be made by an intermediary before commencing his or her functions in terms of section 170A; that the presiding officer must enquire into the competence of a person to be appointed as an intermediary and factors that should be taken into account in evaluating the competency of a person to be appointed as an intermediary; that the head of a court may hold an enquiry into the competence of a person to be appointed as an intermediary and may, if the person is found to be competent to be appointed as an intermediary and after the person has taken the oath referred to in paragraph (a) above, issue a certiﬁcate in the form prescribed by the Minister, by notice in the Gazette, to the intermediary that may be accepted as proof of the competency of the intermediary and the fact that the intermediary took the prescribed oath in any subsequent proceedings in terms of which the person acts as an intermediary; and that paragraph (c) above must not be construed as prohibiting a judicial officer presiding over proceedings from conducting an enquiry, at any stage of proceedings, regarding the competence of a person to act as an intermediary.
2.9 Clause 9 2.9.1 Section 299A of the Criminal Procedure Act, 1977, regulates the right of a complainant to make representations in certain matters regarding the placement of a person on parole, day parole and under correctional supervision.
In terms of section 299A, when a court sentences a person to imprisonment for offences listed in section 299A(1) (which, among others, include murder or any other offence which involves the intentional killing of a person, rape, robbery, sexual assault, kidnap- ping and trafficking in persons offences), inform the complainant or a relative of the deceased, in the case of murder, if he or she is present that the complainant or relative has a right to make it must 30 representations to the National Commissioner of Correctional Ser- vices when the placement of the accused on parole, day parole or under correctional supervision is considered or to even attend any relevant meeting of the parole board.
2.9.2 Clause 9 of the Bill amends section 299A(1) in order to— (b) (a) delete the requirement in paragraph (a) of intentional killing of a person, since those words may imply that culpable homicide, which is based on negligence, is excluded from the provision; and include any offence, which was committed against any person in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the sentenced person, and where an effective period of imprisonment exceeding seven years was imposed.
2.10 Clause 10 2.10.1 Section 316B of the Criminal Procedure Act, 1977, regulates appeals by the State against a sentence imposed by a superior court.

Section 316B was inserted in the Criminal Procedure Act, 1977, by section 11 of the Criminal Law Amendment Act, 1990 (Act No.

107 of 1990), and provides that the National Director may appeal to the Appellate Division (Supreme Court of Appeal) against a sentence imposed upon an accused in a superior court (High Court).
There has been uncertainty whether this section empowers the State to appeal against a sentence imposed by a High Court sitting as an appeal court from a lower court (section 310A of the Criminal Procedure Act, 1977).

This uncertainty has been a subject of judicial consideration.

As early as 2005, in Director of Public Prosecution v Olivier 2006 (1) SACR 380 SCA, Ms Olivier, convicted of theft and sentenced to six years imprisonment by a regional court, appealed to the High Court against the sentence.
The High Court set aside the sentence imposed by the regional court and substituted it with a sentence of six years imprisonment wholly suspended for ﬁve years on certain conditions.

With the leave of the High Court, the Director of Public Prosecutions (the ‘‘DPP’’) appealed to the Supreme Court of Appeal (the ‘‘SCA’’) against the sentence imposed by the High Court.
In considering the matter, one of the questions the SCA raised, was whether the DPP has a statutory right to appeal a sentence granted by a high court sitting as a court of appeal, on the backdrop of section 316B of the Act and sections 20 and 21 of the repealed Supreme Court Act, 1959 (Act No.

59 of 1959).
59 of 1959).

The SCA (at paragraph 15) stated that subsection (1) of section 316 provides for appeals to the SCA against a sentence imposed by a superior court, and that this does not mean a superior court sitting as a court of appeal.

It clearly means a superior court sitting as a court of ﬁrst instance.

The SCA noted that this was in line with established common law principles limiting the right of appeal of the State.
The SCA concluded that, in the absence of an empowering provision in the Criminal Procedure Act, 1977, which speciﬁcally grants the SCA jurisdiction, and which is consistent with the Constitution of the Republic of South Africa, 1996 (the ‘‘Constitu- tion’’), the SCA does not have jurisdiction to entertain the appeal.
Later on, in S v Nabolisa 2013 (2) SACR 221 CC, a matter involving an application for leave to appeal by Nabolisa against a sentence that was increased on appeal by the SCA after his appeal from the High Court, the Constitutional Court, held that section 316B did not empower the SCA to adjudicate the increase of the sentence where the State did not apply for leave to cross appeal the sentence as the State’s right of appeal is sourced from the Criminal Procedure Act, 1977 (section 316B), and no other legislation empowered the State to appeal in the manner that it did.
The Constitutional Court thus concluded that the SCA did not have jurisdiction to increase the sentence and 31 re-instated the sentence imposed by the trial court.

In DPP Western Cape v Kock 2016 (1) SACR 539 (SCA), similar to the Olivier matter, Kock was convicted by the regional court for fraud and sentenced to ﬁve years imprisonment, wholly suspended for ﬁve years.

The DPP appealed to the High Court, which further reduced the sentence to four years’ imprisonment suspended for ﬁve years.
The DPP then sought special leave to appeal to the SCA in terms of sections 16(1)(b) and 17(1)(a)(i) and (ii) of the Superior Courts Act, 2013.

Referring to Olivier, the SCA held that sections 16 and 17 of the Superior Courts Act, 2013, do not apply in criminal matters, and that there is no speciﬁc provision in the Criminal Procedure Act, 1977, that empowers the State to appeal against a sentence imposed by a High Court substituting a sentence of a lower court (paragraph 12).
Recently, in DPP, Gauteng vs Ramoleﬁ 2019 ZASPA 60 (delivered 3 June 2019), involving an appeal by the State against a sentence imposed on appeal by a High Court, the SCA reluctantly relied on its decision in Olivier, Nabolisa and Kock in respect of the State’s right of appeal against a sentence imposed by the High Court on appeal.
Although the SCA noted (at paragraph 5) that on the facts Ramoleﬁ’s case may be distinguished from Kock’s matter, in that Kock’s matter involved a further (or second) appeal by the State, whilst in Ramoleﬁ, the ﬁrst appeal from the trial court was by the accused, the SCA concluded (at paragraph 15) that, on the reasoning in Olivier and Kock, the court does not have jurisdiction to determine the matter (‘‘as no provision is made for a situation where appeal court wildly errs in the opposite direction’’), noting that this is a situation that may expose a lacuna which may merit consideration by the legislature.
It is on this basis that the judiciary has since indicated a need for legislative clarity on this issue.

2.10.2 Clause 10 seeks to address this matter by amending section 316B of the Criminal Procedure Act, 1977, to allow the State to appeal a sentence imposed by the High Court sitting as a court of appeal in terms of section 310A, in circumstances where a grave failure of justice would otherwise result or the administration of justice may be brought into disrepute.
The provision is intended to maintain the common law principle of limiting the right of appeal by the State, in that the State is not given a free and endless right of appeal, but limiting the right to cases where injustice may result if the State is not afforded the right of appeal, as the court noted in Ramoleﬁ’s matter.
2.11 Clauses 11, 12, 13 and 14 2.11.1 Section 40(1)(b) of the Criminal Procedure Act, 1977, empowers a police official to arrest, without a warrant of arrest, a person whom he or she reasonably suspects of committing an offence referred to in Schedule 1 of the Act.
Section 42(1)(a) contains a similar provision empowering a member of the public to arrest, without a warrant, a person who commits in his or her presence or whom he or she reasonably suspects of committing an offence referred to in Schedule 1 of the Act.

The offences listed in Schedule 1 of the Act include the offence of assault where a dangerous wound is inﬂicted.
It appears there has been uncertainty about the meaning or the interpretation of assault where a dangerous wound is inﬂicted as listed in Schedule 1.

The question seems to be whether assault listed in Schedule 1 is similar to or includes the offence of assault with intent to inﬂict grievous bodily harm.
Recently, the Supreme Court of Appeal in De Klerk v Minister of Police (329/17) ZASCA 45 (28 March 2018), noted that ‘‘it is common cause that Schedule 1 does not include assault with intent to do grievous bodily harm.

It lists an offence of assault when a dangerous wound in inﬂicted’’.

Later, in 2018 in an article, titled ‘‘Assault with GBH is a misstatement of the Law’’ (the Law, December 2018, p 17), Adv.
Kilifele discusses the De Klerk 32 matter and an earlier High Court decision in Mnewo v Minister of Police (647/2013)[2016] ECBHC 13 (14 June 2016), where the court noted that ‘‘it is evident that the concepts of ‘grievous bodily harm’ and ‘dangerous wound’ are not necessarily synonymous as it was pointed out in Bobbert v Minister of Law and Order 1990 (1) SACR 404 (c) at 408–490’’.
The article concludes that, in the light of these cases, assault with intent to inﬂict grievous bodily harm is a misstatement of law, misapprehension, and not an offence envisaged in Schedule 1 of the Criminal Procedure Act, 1977.

The judiciary has thus called for clarity on this matter.

2.11.2 Clauses 11, 12, 13 and 14 amend Schedules 1, 2, 7 and 8 to the Criminal Procedure Act, 1977, respectively, to expand the offence of assault when a dangerous wound is inﬂicted.
In terms of these amendments, the offence is described as assault when a dangerous wound is inﬂicted, involving the inﬂiction of grievous bodily harm, or where a person is threatened with grievous bodily harm or with a ﬁre-arm or dangerous weapon as deﬁned in section 1 of the Dangerous Weapons Act, 2013 (Act No.

15 of 2013).

2.12 Clause 15 2.12.1 Part I of Schedule 2 to the Criminal Law Amendment Act, 1997 (Act No.
105 of 1997) (the ‘‘Minimum Sentences Act’’), makes provision for minimum sentences for certain serious offences, including murder, rape and compelled rape.

In terms of section 51(1) of this Act, a regional court or the High Court must sentence a person convicted of an offence in Part I of Schedule 2 to the Act, to life imprisonment.
2.12.2 Clause 15 substitutes the offence of murder, to include the following offences thereunder: (a) The murder of a person under the age of 18 years; and (b) the death of the victim which resulted from physical abuse or sexual abuse as contemplated in paragraphs (a) and (b) of the deﬁnition of ‘‘domestic violence’’ in section 1 of the Domestic Violence Act, 1998, by the accused who is or was in a domestic relationship, as deﬁned in section 1 of that Act, with the victim.
2.12.3 Part I of Schedule 2 provides that the offence of rape— (a) when committed— (i) in circumstances where the victim was raped more than once, whether by the accused or by any co-perpetrator or accomplice; (ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose or con- spiracy; (iii) by a person who has been convicted of two or more offences of rape or compelled rape, but has not yet been sentenced in respect of such convictions; or (iv) by a person, knowing that he has the acquired immune deﬁciency syndrome or the human immunodeﬁciency virus, is punishable by life imprisonment.
2.12.4 The wording of items (i) and (iii) in paragraph 2.12.3 above has given rise to the following uncertainties in a number of court judgments: (a) In respect of item (i), the issue seems to be that in circumstances where the victim is raped more than once by the accused or any co-perpetrator or accomplice, but the co-perpetrator or the accomplice is not before court or has not been convicted for rape, whether the court can sentence the accused in terms of item (i), to life imprisonment.
It seems that the SCA created a precedent in 2013 in Mahlase v S (255/13) ZASCA 191), but the issue continues to be a cause of concern in subsequent judgments.

33 Mahlase appealed to the SCA against a sentence by the Limpopo High Court sitting as a trial court, where the High Court convicted Mahlase of various crimes, including rape, and in respect of rape sentenced him to life imprisonment in terms of item (i) of Part I Schedule 2 of the Minimum Sentences Act.
The SCA, after considering the facts, concluded that the trial court misdirected itself in respect of the sentence imposed for the rape conviction.
The SCA noted that while the victim was apparently raped more than once, the judge overlooked the fact that accused 2 and 6 who were implicated by the State witness, were not before the trial court and had not yet been convicted of rape, thus it cannot be held that the rape fell within the circumstance contemplated in item (i) of Part I Schedule 2 to the Minimum Sentences Act.

The minimum sentence was therefore not applicable to the rape conviction and the sentence of life imprisonment was set aside.
With that decision of the SCA binding on the High Court, the precedent has created uncertainty in subsequent High Court decisions.

In 2015, the Eastern Cape High Court (the ‘‘ECG’’), in S v Cock, S v Manuel 2015 (2) SACR 115, considering two separate appeals against a sentence of life imprisonment for rape, the court felt obliged to comment on the anomaly brought about by the SCA in the Mahlase matter.
The anomaly being that the ﬁrst accused (Cock) to be convicted and sentenced, is liable to be sentenced to the prescribed minimum sentence of ten years (in terms of Part III of Schedule 2), whereas any accused to be convicted thereafter (Manuel) would be sentenced to life imprisonment.

The ECG held that it was nevertheless bound by the decision, and the life imprison- ment imposed on Cock was set aside (paragraph 28).
In 2017, the Gauteng High Court, in Khanye v State (A66/2015 [2017] ZAGP JHC 320), considering an appeal against a sentence of life imprisonment in terms of Part I, item (i) of the Minimum Sentences Act, was critical of the decision in the Mahlase matter.
The court was of the view that the interpretation in the Mahlase matter was incorrect, noting that section 51(1), read with Schedule 2 Part 1 of the Minimum Sentences Act, does not mean that more than one person must be convicted to trigger its application (paragraph 30).

The court dismissed the appeal and conﬁrmed the sentence of life imprisonment in respect of rape.
The most recent decision is that of Ndlovu v S [2019] JOL 45350 (KZP), where the court held that despite the criticism of the Mahlase matter, the decision is still binding.

The court concluded that the effect of the Mahlase decision is that it cannot be said that the victim was raped by more than one person, unless both of them have been convicted.

(b) The question that arises in respect of item (iii) is whether the wording covers a person who has been convicted of more than one rape in the same trial.
According to a judgment of the SCA in the matter of S v Mahamotsa 2002 (2) SACR 435 (SCA), item (iii) does not apply.
In this case, which involved an accused convicted on two counts of rape, the second rape was committed whilst the accused was awaiting trial on the ﬁrst rape, the court noted that it must be remembered that at the time of the second rape, the accused had not as yet been convicted on the ﬁrst count of rape and that the Legislature has, in itself, distinguished him from persons who, having been convicted of two or more offences of rape but not yet sentenced, commits another rape.
In a more recent decision, in Ngcobo & Other v S (AR759/14) 2016 ZAKZPHC, the court noted (at paragraph 11) that the meaning of the item raises questions, including a question why a third rape committed after two convictions, but before sentencing, would attract a life imprisonment, while a third rape committed in 34 circumstances contemplated in Part III would attract 20 years imprisonment.
2.12.5 In order facilitate legal certainty, clause 15 seeks to amend the wording of items (i), (ii) and (iii), in order to make it applicable in the case of the following scenarios: (a) In the circumstances where the accused is convicted of the offence of rape and evidence adduced at the trial of the accused proves that the victim was also raped by— (i) (ii) any co-perpetrator or accomplice; or a person, who was compelled by any co-perpetrator or accomplice, to rape the victim, as contemplated in section 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, (b) irrespective of whether or not the co-perpetrator or accomplice has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question.
In the circumstances where the accused is convicted of the offence of rape on the basis that the accused acted in the execution or furtherance of a common purpose or conspiracy and evidence adduced at the trial proves that the victim was raped by more than one person acted in the execution or furtherance of a common purpose or conspiracy to rape the victim, irrespective of whether or not any other person who so acted in the execution or furtherance of a common purpose or conspiracy has been convicted of, or has been charged with, or is standing trial in respect of, the offence in question.
(c) When committed by the accused who— (i) has previously been convicted of the offence of rape or compelled rape; or (ii) has been convicted by the trial court of two or more offences of rape or the offences of rape and compelled rape, irrespective of—  whether the rape of which the accused has so been convicted constitutes a common law or statutory offence;  the date of the commission of any such offence of which the accused has so been convicted;  whether the accused has been sentenced in respect of any such offence of which the accused has so been convicted;  whether any such offence of which the accused has so been convicted was committed in respect of the same victim or any other victim; or  whether any such offence of which the accused has so been convicted was committed as part of the same chain of events, on a single occasion or on different occasions.
2.12.6 Clause 15 also amends paragraph (b) of the offence of rape.

Paragraph (b) provides for circumstances where the offence of rape is punishable by life imprisonment, where the victim of the offence is a vulnerable person.
In terms of this amendment— (a) the age of a vulnerable person is increased from 16 years to 18 years; and (b) a new item is inserted to extend the application of Part I of Schedule 2 to a victim who is or was in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused.

2.12.7 Similar amendments are effected to the offence of compelled rape listed in Part I of Schedule 2 to the Minimum Sentences Act.
2.13 Clause 16 35 2.13.1 Various persons recommended that the offences of—  attempted murder;  rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, in circumstances other than those referred to in Part I; and  sexual exploitation of a child or sexual exploitation of a person who is mentally disabled as contemplated in section 17 or 23 or using a child for child pornography or using a person who is mentally disabled for pornographic purposes, as contemplated in section 20(1) or 26(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which are currently listed in Part III of Schedule 2 must, due to their seriousness, be inserted in Part II of Schedule 2 of the Minimum Sentences Act.
2.13.2 Section 51(2)(a) of the Minimum Sentences Act provides that a regional court or the High Court must sentence a person convicted of an offence listed in Part II of Schedule 2 to the Act, to a minimum period of imprisonment of 15 years in the case of a ﬁrst offender, 20 years in the case of a second offender and 25 years in the case of a third or subsequent offender.

The offences discussed in paragraph 2.13.1 are currently subject to the sentencing dispensation discussed in para- graph 2.14, below.
Clause 16 of the Bill inserts these offences in Part II of Schedule 2 to the Minimum Sentences Act.

2.14 Clause 17 2.14.1 Section 51(2)(b) of the Minimum Sentences Act provides that a regional court or the High Court must sentence a person convicted of an offence listed in Part III of Schedule 2 to the Act, to a minimum period of imprisonment of 10 years, in the case of a ﬁrst offender, 15 years in the case of a second offender and 20 years in the case of a third or subsequent offender.
2.14.2 Clause 17— (a) deletes the offences referred to in paragraph 2.13.1 from Part III (b) of Schedule 2; and inserts in Part III of Schedule 2, the offence of assault with intent to do grievous bodily harm— (i) on a child—  under the age of 16 years; or  either 16 or 17 years of age and where the age difference between the child and the person who has been convicted of the offence is more than four years; or (ii) where the victim is or was in a domestic relationship, as deﬁned in section 1 of the Domestic Violence Act, 1998, with the accused.
2.15 Clause 19 contains the short title and provides for the commencement of the Amendment Act.

3.
3.

DEPARTMENTS/BODIES CONSULTED 3.1 The individual provisions of the Bill were developed in conjunction with or at the request of, relevant stakeholders, including representatives of the lower courts judiciary, the National Prosecuting Authority, the Department of Correctional Services, the Inter-sectoral Committee for the Management of Sexual Offence Matters established under the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, and the South African Police Service.
36 3.2 The Bill was made available for public comment.

The Department received inputs from the Women’s Legal Centre, Rape Crisis Cape Town Trust in collaboration with Lawyers for Human Rights, Legal Resources Centre, Commission for Gender Equality, United Nations Office on Drugs and Crime, Scalabrini Centre, Western Cape Provincial Government, African Policing Civilian Oversight Forum, Dr Joan van Niekerk, Karrin Pillay, Adv R Meintjies, G van Rooyen, Z Mdlozini, H Saunders, M Prinsloo and G Hunt-Higgs.
The majority of the commentators supported the Bill.

4.

IMPLICATIONS FOR PROVINCES There are no implications for the provinces.

5.

FINANCIAL IMPLICATIONS FOR STATE There are no ﬁnancial implications for the State.

6.
PARLIAMENTARY PROCEDURE The Department of Justice and Constitutional Development and the State Law Advisers are of the opinion— (a) (b) that the Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies; and that it is not necessary to refer the Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No.
41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.

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